Appellate Division Prohibits Video Recorded IME’s, Levels Playing Field for Defendants

December 16, 2015

New York defendants scored a significant procedural victory recently, when the Appellate Division ruled that personal injury plaintiffs cannot video record independent medical examinations (“IME’s”) without prior court approval. The unanimous decision by a four-judge panel halts a growing trend of plaintiffs recording IME’s for expert impeachment, but equally as important, it highlights the hurdles that defendants oftentimes face at the trial court level.

In the damages trial of Bermejo v. New York City Health and Hospital Corp., 2015 WL 7270707 (2d Dep’t. 2015), the defense called a well-known orthopedist, Dr. Michael Katz, to testify on the issue of the plaintiff’s injuries. Throughout Dr. Katz’s testimony, Queens Supreme Court Justice Duane Hart exhibited a shocking amount of defense bias, which would form a basis for the Appellate Division’s eventual rebuke of the lower court. Justice Hart repeatedly placed his personal suspicions about Dr. Katz’s credibility ahead of evidence that was before the jury, in an obvious attempt to undermine the expert’s credibility and take down the IME industry in general.

Justice Hart eventually declared a mistrial on the issue of plaintiff’s surreptitious and undisclosed video recording of Dr. Katz’s IME, but not before he unequivocally and repeatedly accused the medical expert of lying under oath, inexplicably fixating on Dr. Katz’s seven-figure salary and popularity among the defense bar. In what amounted to a professional assassination, Justice Hart threatened criminal prosecution and professional censure of the doctor, calling on insurance companies to stop hiring him for IME work. Outrageously, the judge even threatened to impose the maximum amount of sanctions on defense counsel unless they stated, on the record, that their expert had lied under oath.

On November 18, 2015, the New York State Supreme Court Appellate Division, Second Department, ruled that plaintiffs have no legal right to video record IME’s and that any requests must be decided by the trial court on a case-by-case basis. It further ruled that video recordings are only permissible when plaintiffs can prove “special and unusual circumstances,” and that they must be disclosed before trial. Moreover, the Appellate Division excoriated Justice Hart for committing an “avalanche of errors” during trial and for his improper and oftentimes outrageous conduct toward the defense. It accused the judge of undertaking “extraordinary efforts” to end Dr. Katz’s medical career and found that the judge’s unfounded accusations “thoroughly intimidated” Dr. Katz so as to prevent him from testifying at any re-trial of the matter.

Given the requirement that defendants are to disclose video surveillance of plaintiffs before trial (or even sometimes before depositions), Bermejo is a welcome ruling in the plaintiff-friendly confines of New York City’s trial courts. The Second Department has stated that plaintiffs must play by the same rules as their counterparts, and in doing so, it has taken a small step to a more even playing field.